ADDRESS TO JULY 2006 MEETING OF THE UNITED NATIONS ASSOCIATION OF AUSTRALIA

By the Honourable Justice Shane Marshall, a judge of the Federal Court of Australia 

Justice or Appeasement – Human Rights in East Timor

On 31 October 2005, the Commission for Truth, Reception and Reconciliation, more commonly known by its Portuguese acronym, CAVR, presented its final report to the President of East Timor, Xanana Gusmão. In its report the CAVR identified its mandate as:
	“to establish the truth about the human rights violations which occurred in Timor-Leste throughout the 25-year mandate period.”

The report’s mandate period starts in 1974 and ends in 1999.
 
The CAVR found a wide range of material that constitutes “strong evidence of human rights violations which occurred throughout the period”. Some aspects of that evidence will be discussed further below. Even if one concentrates entirely on the calendar year 1999, the human rights violations referred to in the report are breathtakingly stark. It is unthinkable that the major perpetrators will never be brought to justice.

The United Nations Transitional Administration in East Timor (“UNTAET”) established the CAVR by Regulation 10 of 2001, with effect from 13 July 2001. At [48] of the Introduction to the report, the CAVR said:
	“The Commission’s establishment was supported by political leaders of all political persuasions, non-government organisations, the Catholic Church and other religious institutions, the UN mission, UNHCR, the UN High Commission for Human Rights, other international organisations and donor countries. The level of support for the Commission was so broad that reference to it was included in the National Constitution of RDTL Article 162. By the time the Constitution was signed in May 2002, the Commission was already operating.”

The CAVR’s report provides a detailed historical analysis of the period leading up to the 1990s. In Part 3 of the report titled “The History of Conflict”, at [470] the CAVR said:
	“The East Timorese independence movement was transformed in the 1990s. The focus moved from the guerilla campaign to a diplomatic campaign, with strong support from student groups in Timor-Leste and Indonesia and growing international support. This shift was aided by three pivotal events: the Santa Cruz Massacre, the capture of Xanana Gusmão and the award of the Nobel Peace Prize to Bishop Belo and José Ramos-Horta.”

These pivotal events and the consequent increased interest of the international community emboldened those in East Timor who sought independence to strive to achieve that aim.

However, the CAVR reports that the Indonesian military, known by the acronym “TNI”, developed a response which focused on combating the independence movement through fear and thuggery with the establishment of paramilitary forces. At [489] of Part 3 of the report, the CAVR said:

“From the mid-1990s, a new focus was brought to paramilitary and intelligence operations in the territory. Armed groups which became known as “Ninja” squads roamed the streets of Dili after dark, creating a sense of terror among the population as people disappeared in these covert operations. The riot police, Brimob, became a ubiquitous and violent presence, especially in Dili where student demonstrations were most common.” (citations omitted)

The report showed the following actions taken by the TNI to set up militia groups as the frontline of the military campaign against independence.
•	By August 1998, the TNI maintained a network of paramilitary groups linked to elite special forces or “Kopassus units”, despite claiming to have withdrawn these units. At [535] of Part 3 of the report says:
“Twelve teams were in place in 11 districts, most of them linked to Kopassus units. These groups formed the basis of the militia that were rapidly recruited in later months.”
•	In November 1998, a militia group (Ablai) aided the TNI in killing civilians suspected of assisting Falintil after the civilians hid inside a church in Alas, seeking refuge from fighting between the TNI and Falintil. International journalists who travelled to Alas observed non-military personnel in control;
•	militia groups linked to traditional kings had long existed in East Timor but the emerging militias in the late 1990s were mostly linked directly to the TNI. Many were serving members of the TNI who went in and out of uniform as they pleased;
•	the TNI held public ceremonies inaugurating militia groups;
•	militia members publicly stated that the TNI armed them and senior TNI officers made statements to that effect. General Wiranto, Commander in Chief of the Armed Forces acknowledged the TNI’s involvement in the militia;
•	while some militia members joined under duress, many others were motivated by money paid to them by the TNI and the prestige in being associated with the TNI;
•	from late 1998 militia groups came to be mentioned in military documents detailing the TNI’s supply of arms to the militia;
•	a militia defector, Tomas Goncalves, confirmed the involvement of the Kopassus intelligence unit and key military officers [Suratman, Sudrajat and Damiri] in the recruitment of militia members; and
•	the TNI predominantly armed the militia with crude home-made weapons to create the appearance of a spontaneous popular movement engaged in a civil war with pro-independence groups. This deception became apparent when the TNI made automatic weapons available to some groups as well as logistical and security support.

From his prison cell in Cipinang Prison, Xanana Gusmão cautioned against reacting to the militia so as not to play into the hands of the TNI and make the international community think there was a civil war. At the time, some Australian commentators seemed to accept the TNI rhetoric based on statements I recall them making on national television.  Even during a recent Sky News TV report on the late May troubles in Dili, an anchorman, entering an area beyond his expertise, referred to the 1999 “civil war”.

On 27 January 1999 President Habibie announced the “popular consultation” on special autonomy or independence. But in the weeks preceding the announcement the militia group “Mahidi”, based in Cassa, Ainaro, caused 4,000 people to flee their violence and seek refuge in a partially constructed cathedral in Suai. Nearby in the small town of Galitas, on 23 January 1999, members of Mahidi killed a pregnant woman and cut her baby from her belly.

Further killings occurred in Mauboke, Liquiçá. With the presence and involvement of the TNI and the Brimob riot police, 60 refugees were slaughtered on 6 April 1999, whilst seeking shelter in the Liquiçá Church. Senior TNI officers were observed at the Church immediately before the massacre.

On 12 April 1999 militia killed 7 people in Cailaco, Bobonaro. On 17 April 1999 the Aitarak militia, lead by the notorious Eurico Guterres, rampaged through Dili and killed 12 people at the home of Manuel Carrascalao. At the time Irish Foreign Minister, David Andrews, was in a meeting with Colonel Suratman, the TNI commander in Dili. Andrews observed Suratman take a report on the killings and do nothing in response.

In respect of these atrocities, the CAVR said at [553] of Part 3 of the report:
“In each of these cases the killing shared the elements of direct military support or involvement, militia perpetration, the targeting of independence supporters and systematic body disposal by the military that made total deaths difficult to ascertain. These patterns strongly suggest the involvement of the TNI in conducting operations. This violence was designed to create the illusion of a conflict between armed East Timorese. The Liquiçá and Dili massacres were later explained by Colonel Suratman as having been provoked by bullets fired by the pro-independence supporters. However investigations showed that in no instance were the victims found to have been armed.” (citations omitted)

On 5 May 1999, Deputy Chief of Staff of the TNI, Lieutenant General Lumintang requested regional command in Bali to prepare evacuation plans for East Timor, given the possibility of a majority pro-independence vote in the ballot. The UN was not informed of these plans until immediately before the ballot. No rational person with any respect for human life could have envisaged the carnage, mass forced departures and wholesale destruction that would be involved in carrying out the plans.

On 17 May 1999 the District Administrator in Dili established a broad militia group named Pam Swakarsa.  He nominated the governor, the provincial military commander and the provincial police chief as key advisers and Eurico Guterres as its “Operational Commander”. Of the 2,650 listed members of the officially sanctioned Pam Swakarsa, 1521 were members of the Aitarak militia, the feared pro-Indonesia militia lead by Eurico Guterres.

On 20 May 1999, Aitarak militia, with TNI involvement, killed two student leaders in Hera, near Dili. About the same time two other students were killed in Covalima by Laksaur militia.

In June 1999, Suratman appeared on the “Sunday” program and said:
“I want to give you this message. If the pro-independence side wins, it’s not going to just be the government of Indonesia that has to deal with what follows. The UN and Australia are also going to have to solve the problem and well, if this does happen, then there’ll be no winners. Everything is going to be destroyed. East Timor won’t exist as it does now. It’ll be much worse than 23 years ago.”

On 29 June 1999 the Dadarus Merah Putih militia attacked the UNAMET office in Maliana. On 4 July 1999 the Besih Merah Putih militia attacked a humanitarian convoy between Liquiçá and Dili. On 7 July 1999, Ian Martin of UNAMET flew to Jakarta to meet with General Wiranto and put directly to him the UN’s evidence of the relationship between the TNI and the militia.

In the face of intimidation and violence some 451,792 voters registered with UNAMET to take part in the ballot, about 90% of those eligible to vote.

In the period leading up to the ballot in late August 1999, only two incidents of pro-independence violence occurred. On 12 July, independence supporters killed a pro-integration supporter and on 29 August an Aitarak member was killed in Becora, Dili.

Whilst being involved in the task force to implement the ballot, Major-General Makarim ran the militia campaign. On 18 August 1999 a US congressional delegation witnessed violence in Suai. Their report led to the removal of Makarim as well as two TNI district commanders. Their removal was sold by the TNI as it clamping down on rogue soldiers. Earlier on 13 August 1999 Colonel Suratman was replaced by Colonel Muis, another commander with a Kopassus background.

On 30 August 1999, 98.6% of those registered to vote cast a ballot, with the pro-independence position overwhelmingly favoured by 78.5% to 21.5% against.

On ballot day, two East Timorese staff of UNAMET in Atsabe were killed by militia. A UN civilian police witness observed TNI members at the scene.

Militia violence broke out in the days following the ballot, bringing Suratman’s warning to the Sunday program to its grim reality.

At [621] to Part 3 of the report, the CAVR said:
“On 1 September militia arrived in Dili and conducted attacks on pro-independence supporters close to the UNAMET compound in Balide. One man was filmed by international media running for his life and being caught and hacked to death by militia. Hundreds sought refuge in the school next door to the UNAMET compound. In Ermera violence broke out, and UNAMET evacuated its staff to Dili. On 2 September in Maliana, militia surrounded the UNAMET office and went on a spree of shooting and house burning. Two East Timorese UNAMET staff were killed.”

Between 1,200 and 1,500 East Timorese were killed by the militia and the TNI in 1999. Nine hundred of these deaths occurred after the ballot, that is, from early September until late October, when the International Forces for East Timor (Interfet) arrived.

Four hundred people were murdered in mass killings and the rest individually. Many were mutilated by militias wielding machetes. Those who survived continue to suffer health difficulties. Independence leaders and their families were particularly targeted. Torture, sexual violence and forced deportation occurred.

In excess of half of the population, that is 550,000 people fled their homes. 250,000 were transferred to West Timor either forcibly or by intimidation. Those seeking refuge in churches were executed mercilessly, clergy and nuns amongst them.

As the TNI departed with the arrival of Interfet, it destroyed 70% of major infrastructure, houses and buildings, it razed entire villages and towns and looted the possessions of the population. The militia joined in the rampage, burning buildings with petrol supplied by the TNI often delivered in fire engines with petrol in the water tanks. An exercise of such logistical proportions could not have been carried out with out TNI involvement.

The CAVR report makes a large number of recommendations concerning legal, political and administrative reforms to prevent the repetition of human rights violations and to respond to the needs of victims.  These include a recommendation that the Government of Indonesia formally apologise to victims of human rights violations occurring in East Timor during the occupation, and to pay reparations.  The recommendations also call for reparations from the permanent members of the Security Council, especially the United States of America but also Britain and France, as well as from companies in those countries who profited from the sale of arms to Indonesia during the occupation.  

Under the heading of Recommendation 7, “Justice and Truth” the report notes that:
The demand for justice and accountability remains a fundamental issue in the lives of many East Timorese people and a potential obstacle to building a democratic society based on respect for rule of law and authentic reconciliation between individuals, families, communities and nations. 

The report goes on to recommend the renewed mandates and increased resources for the Serious Crimes Unit and the United Nations Special Panel for Serious Crimes, formerly a division of the Dili District Court.   It also called for the investigation and the preparation of prosecutions for a specific list of pre 1999 incidents.  It was further recommended that Indonesia transfer those indicted under these processes to East Timor for prosecution.  Should these measures fail, or should Indonesia continue to obstruct the implementation of this justice, the report recommends the institution of an International Tribunal, pursuant to Chapter VII of the UN Charter. 

In previous papers I have detailed the response of the UN and the new East Timorese Parliament in setting up and developing a Court system.  However, in the Special Panels for Serious Crimes and the District Courts, no major TNI operative has been brought to justice. 

Many of the recommendations arising out of the report have met with resistance from the government of East Timor.  In his speech on handing over the final report of the CAVR to the National Parliament, President Gusmão distanced himself and the East Timor government from the report.  Whilst applauding the grandiose idealism of the recommendations, Mr Gusmão poured cold water on the claim that compensation is necessary for reconciliation, focusing instead on the principles of tolerance and forgiveness as the true basis for the coexistence of diverging opinions in society.  He described the recommendations for reparations as being of serious concern.  He also took issue with the CAVR finding that the absence of justice is a fundamental obstacle in the process of building a democratic society.  Mr Gusmão considered retribution and deterrence to be less important in building a democratic society than independent courts and the prevention of corruption.  The true risk to a state based on the rule of law, according to Mr Gusmão, is “ill practised justice”.  He also rejected the recommended revival of the Special Panels for Serious Crimes on the basis that:
“This recommendation does not take into account the situation of political anarchy and social chaos that could easily erupt if we decide to bring to court every crime committed since 1975 or even 1974”
Additionally, Mr Gusmão expressed concern that by further highlighting past crimes, the East Timorese would be portrayed as brutal, violent and blood thirsty people.

The sentiments expressed by President Gusmão reflect a concern about the volatility and instability of the situation in post conflict East Timor, a concern which is clearly justified by recent events.  He also expressed concern that the CAVR report could be used to manipulate his people’s state of mind.  These concerns seem to be driven in part by the pragmatic recognition of East Timor’s economic and military vulnerability to Indonesia, in part to placate internal and external volatility and in part by a genuine desire to leave the violent past behind.  As such, Mr Gusmão has advocated a philosophy of “forgive and forget”, promoting a role for the current government as managing the present and adapting for the future.

One can readily understand the reluctance of the political leaders of East Timor to offend their powerful neighbour and appreciate the fear of destabilising a volatile situation by revisiting past atrocities. However, the international community has a responsibility in this matter.  Whatever President Gusmão’s motivations for discouraging further investigations of human rights abuses, the international community should not sit by and allow the pain inflicted on the people of East Timor to fester indefinitely.  Retribution and deterrence are important elements of justice.  It is now clear that large parts of the East Timorese population want and deserve justice and accountability.  Failure to deliver on this will provide fertile grounds for mistrust between social groups, and towards state institutions, to flourish.  Failure to punish perpetrators of past human rights abuses will fail to deter future violence and will perpetuate future abuse.  This is true for the people of East Timor as well as members of the TNI and militia groups throughout Indonesia. 

Although Mr Gusmão talks of the goal of liberty being too important to consider individual sacrifice, crimes were committed during the Indonesian occupation of East Timor that are too serious to ignore.  Unlike the East Timorese, the international community at large is not directly dependent on Indonesia for trade and security.  If the international community pursues those behind the violence in Rwanda, Kosovo, Cambodia, Bosnia, Sierra Leone and Iraq, why not East Timor? 

If Saddam Hussein can be brought to justice, why not the Indonesian military officers who have been indicted by the UN Special Panels for Serious Crimes?  

It shames us all in the wider international community to be selective in who we appease whilst we simultaneously leave the powerless with no redress for genocide and war crimes.  At the same time, one must respect the views taken by those in East Timor who have to live with the direct consequences of any decision to establish a war crimes tribunal.

POST SCRIPT

Recently, East Timor has again been gripped by instability and violence.  It appears that there is no one single source of these troubles, but rather unrest is being generated from a number of different parts of society.  The most public of these has been the petition delivered by former East Timor Armed Forces (F-FDTL) members on 11 January 2006.  The petition, now known as the “591 petition”, reflecting the 591 signatories, alleged discrimination within the F-FDTL against soldiers born in the western districts of East Timor.  The petitioners left their barracks in February to march to Dili in support of their protest and were dismissed en masse from the F-FDTL in March.

In response to the allegations in the petition the government set up a commission of enquiry, on 27 April.  Unfortunately, on 28 April, the very next day after the announcement of the Commission, the petitioners held further protests and, when joined by other anti-government groups, these protests turned violent.  Reports about the composition of these groups are varied, however it seems clear the petitioners’ protests have acted as a lightning rod for other dissidents, many of whom are motivated by poverty and the massive unemployment, especially amongst the youth.  There are also reports of random acts of violence committed by organised martial arts gangs, some with links to Indonesia, the East Timor police and the F-FDTL.  The ensuing violence in Dili has killed at least 37 people, sparked a wave of arson and looting and displaced most of the capital’s population.

These events have had a devastating effect on the new nation, desperately trying to find its feet.  They are a product of a number of complex factors including economic and governmental ones.  Nevertheless, as Amnesty International has noted in a recent report on these issues:

“a lack of rule of law and the presence of a culture of impunity for past violations are, without doubt, contributing causes.  Without accountability for past crimes there can be no reconciliation, which could in turn result in further instability.  This is the cycle in which Timor-Leste has been trapped since its independence.”

The application of genuine punishment of past perpetrators of violence would be one way to break this cycle.  There is a saying amongst the East Timorese that, in relation to the many past human rights abuses, “there has been no justice, just tears”.    The establishment of a human rights tribunal for East Timor will not solve the country’s serious economic and governance problems.  However, showing the people of East Timor that justice will reach and punish people for past crimes, irrespective of position, nationality or rank, will go some way to building faith in the current system and may discourage would be perpetrators in the future.

At the request of Mr Ramos Horta, Minister of Foreign Affairs and Cooperation, the UN has now established an Independent Special Inquiry Commission to review a number of specific incidents including the violence of 28 April and other related events or issues which contributed to the crisis.  The UN Inquiry team has promised to produce a report by the first week of October 2006.  When that process concludes, why stop there?  The victims of 1999 and their families also deserve justice, not “just tears”.